Terms and Conditions of Sale (United States)

I. GENERAL: The following Terms and Conditions of Sale (“Sale Terms”) are applicable to all sales made by Circassia Pharmaceuticals Inc. (“Circassia”), and are binding on the Customer. No deletions, modifications or amendments to these Terms shall be binding on Circassia nor shall Customer’s terms or conditions contained in a purchase order, document or statement, whether offered directly or indirectly (such as a website reference) negate, alter, extend or contradict any Terms of Sale between the Parties unless agreed to and accepted in writing by Circassia.

All sales are subject to written confirmation by Circassia. Receipt by Customer of Circassia’s acknowledgement of an order without prompt written objection thereto shall constitute acceptance by Customer of these Terms.

II. PRODUCT PRICE QUOTATIONS: Product quotations are not a firm commitment. No contract for sale shall arise until a written acknowledgement from Circassia accepting the Customer’s order, is sent by Circassia to the Customer.

III. DELIVERY: Circassia shall ship all items when and as specified in the Sales Order. Unless otherwise specified by Circassia in writing, the Product(s) shall be delivered FOB Destination.

IV. DELAYS IN DELIVERY: Delivery periods and deadlines stated are subject to timely deliveries made to Circassia by its suppliers. Under no circumstances shall Customer be entitled to any actual, liquidated, consequential or any other direct or indirect damages of any kind arising from Circassia’s failure to ship on time.

V. PRICE OF PRODUCT: Unless otherwise stated in an Agreement between the Parties, the price of the Product(s) shall include items as listed on the packing slip or order; interior and exterior packaging and necessary documentation for shipment from Circassia. Additional cost shall be added to the price when the Customer requests that the Product be packaged in a special manner.

VI. CREDIT: If Customer purchases a 500 or 1000 test sensor, Circassia will allow credit for a minimum of 10 and up to 50 unused tests at sensor expiration toward the purchase of a new 300, 500 or 1000 test sensor. This Credit only applies to future purchase. Unless expressed and documented otherwise, the calculated Credit amount is based on the original purchase price of the NIOX VERO® Sensor, on a per test basis, excluding shipping, multiplied by the number of unused tests.

VII. TERMS OF PAYMENT: Circassia shall promptly invoice the Customer for all items shipped to Customer pursuant to a signed Order Form. Unless agreed to in writing by Circassia, upon acceptance of an Order, Customer shall pay each invoice for items shipped pursuant to a Sales Order within thirty (30) days after the date of the invoice. Subject to a satisfactory Customer credit rating. The Customer may elect payment with credit card and spreading the invoice amount cost over six (6) months with a down payment and five (5) equal monthly installments. If this payment option is elected, the Customer hereby authorizes Circassia to charge the Customer’s credit card as provided at time of purchase, until payment in full has been made.

In the event payment is not received when due (including if Customer credit card has been cancelled or otherwise incapable of processing payment), interest shall accrue at the rate of one and one-half percent (1.5%) on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Customer shall be liable and pay all of Circassia’s costs of collection of any amounts past due, including, but not limited to reasonable attorneys’ fees and costs. In the event of a poor payment history or if other payment risks arise, including an unsatisfactory change in the Customer's credit rating, Circassia reserves the right to require validated prepayment such as a credit card or a certified check.

Circassia shall have the right to refuse to ship Product(s) or provide Product support if Customer is past due on any of its debts to Circassia. Furthermore, Circassia shall have the right to all remedies available at law including immediate Product repossession unless other written arrangements have been made concerning payment. Customer agrees to make all Product(s) available, shipping ready, for Circassia, within five (5) days of receiving notice from Circassia of its intention to repossess the Product(s).

Circassia is required to collect applicable sales tax. If Customer has been granted tax exempt status by its state and/or federal government, Customer shall provide current certificate of exemption to Circassia at the time the Order is placed. Email order form to Sales.US@circassia.com or fax it to 1-866-630-6469.

VIII. RETURNS: All returns and issues with product shipment must be reported between 8 am and 8 pm Eastern Time to Customer Support at:1-866-275-6469 or info.us@circassia.com. Unless Circassia receives notice within five (5) business days from the receipt of Product(s) based on the date of the Packing Slip, the Product(s) shall be deemed to have been delivered in good condition and that the delivery has been accepted by the Customer. No returns will be accepted unless: (a) there is a shipping error or (b) the item is damaged upon receipt or (c) there is an operating failure or defect in the Product occurring during proper and ordinary use that is covered by the Limited Warranty. Shipping errors must be reported to Customer Service at the number above within five (5) days of receipt of shipment. All returns must be authorized in advance and issued a Return Order Authorization Number (ROA #) by Circassia Customer Support which can be contacted via phone or email above. In order to receive an ROA #, the following information is required: Customer name, address, account number, quantity and description of the Product(s) to be returned including serial numbers and/or lot numbers. Once an ROA # has been issued, Circassia will send Customer proper packing materials for shipment including a prepaid shipping label. Return Authorization is only valid for ten (10) days after receipt of the ROA #. Since the Product is expiration sensitive, delayed returns will not be accepted. If Customer fails to follow any of these procedures the Limited Warranty is voided.

IX. LIMITED WARRANTY: Subject to the conditions set out herein, Circassia warrants the Product to be free from defects in material and workmanship (a) with respect to the NIOX VERO® monitor for a period of twelve (12) months after original delivery; and b) with respect to the NIOX VERO® Sensor, for a period of twelve (12) months after the date the NIOX VERO® Sensor is activated or the stated expiration date of the NIOX VERO® Sensor, whichever occurs earlier (the “Warranty Period”). If, during the Warranty Period, the Product fails to operate under normal use due to defects in materials or workmanship, Circassia will, at its sole discretion, replace, repair or credit the non-functioning Product in accordance with the terms and conditions stipulated herein. In addition, the following limitations will apply:

This Limited Warranty is not transferable and may only be invoked by the original Purchaser of the Product.

The Limited Warranty is valid only if the original paid invoice or other proof of purchase issued to Customer by Circassia, specifying the date of purchase and serial number(s), is presented with the Product to be replaced, repaired or credited. Circassia reserves the right to refuse warranty replacement, repair or credit if the Product information has been removed or changed after the original purchase of the Product from Circassia.

If Circassia replaces or repairs the Product, the replaced or repaired Product shall be warranted in accordance with this Limited Warranty (a) for the remaining time of the original Warranty Period, or (b) for three (3) months after the date of delivery of the replaced or repaired Product. With regards to a NIOX VERO® monitor under warranty, for which a replacement or repaired product is not provided, the Customer will be credited 90%of originalinvoiceby the Circassia if less than twelve (12) months after original delivery. With regards to a NIOX VERO® Sensor under warranty, all remaining, unused measurements will be credited on the replacement invoice or with the corresponding number of measurements on a new NIOX VERO® Sensor. Replacement of Product(s) may involve the useof functionallyequivalent reconditioned units at Circassia’s sole discretion.

The Limited Warranty only applies if the Instructions for Use (User Manual) have been followed. This Limited Warranty does not cover any failure of the Product due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the Circassia instructions for use, maintenance and storage of the Product, or as a result of accidental damage, including, without limitation, damage from being dropped or from exposure to liquids of any kind.

This Limited Warranty does not cover Product failures which have been caused by installations, modifications or opening or repair of the Product performed by a person not authorized by Circassia. Tampering with any of the factory seals on the Product voids this Limited Warranty.

This Limited Warranty does not cover Product failures which have been caused byuseof accessories or other peripheral devices or equipment which are not approved by Circassia for use with the Product.

Product(s) returned under this Limited Warranty must be packed and returned as instructed by Circassia. If Customer fails to ship Product(s) per instructed by Circassia this Limited Warranty is voided.

THE EXPRESS TERMS OF THIS LIMITED WARRANTY ARE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FORA PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXCLUDED. IN NO EVENT SHALL CIRCASSIA BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR ANY OTHER ECONOMIC COMMERCIAL LOSS. THE REMEDIES PROVIDED UNDER THIS LIMITED WARRANTY SHALL BE CUSTOMER’S EXCLUSIVE REMEDIES.

X. EXTENDED PRODUCT WARRANTY: If this Purchase includes an Extended Warranty, the Limited Warranty (above) on the NIOX VERO® monitor only is extended from one (1) year to the stated shelf life (5 years as indicated on order form). This extended warranty does not apply to NIOX VERO® Sensors nor to any accessories including but not limited to breathing handles, cables and storage cases.

XI. DATED PRODUCT DISCLOSURE: Customer acknowledges that NIOX VERO® Sensors are expiration dated. If all tests within the sensor are not used by the expiration date, Customer understands there is no recovery from Circassia. Circassia will not compensate, reimburse, or otherwise provide remedy for unused expired product.

XII. CANCELLATION: Circassia may cancel any contract if Customer is in default of the payment of any obligations pursuant to the contract or any other contract between the parties, or if in the sole judgment of Circassia, Customer’s financial condition has become materially impaired. In addition, Circassia shall have the right to recover damages for non-performance, and any unpaid balance due on account of this contract or any other contract between the parties shall become immediately due and payable. Circassia may cancel the contract and be released from its obligation(s) pursuant to the contract, if it is prevented or encumbered unreasonably by conditions beyond its control that occur after Customer’s order has been acknowledged, such as labor disputes, fires, wars, mobilization or unforeseen similar acts by the military authorities, requisition, arrests, currency restrictions, insurrection and riots, acts of terrorism, shortages of means of transportation or raw materials or components, general shortages of goods, destruction of large quantities of Products, restrictions in the use of power, extensive damage to or destruction of machinery or other important equipment for production as well as stocks of raw material or components, and defects in or delay of deliveries from suppliers. Written notice of such encumbrances upon Circassia shall be given to Customer in good faith.

XIII. NOTICE OF DISCOUNT: This Agreement may result in Customer receiving a discount within the meaning of 42 U.S.C. Section 1320a-7b(b)(3)(A), its implementing regulations at 42 C.F.R. Section 1001.952(h), and any similar applicable state law. Customer shall properly reflect and/or report this discount in its costs claimed or charges made to federal or state healthcare programs requiring such disclosure. Circassia will fully and accurately report all discounts to Customer, however, this Agreement informs Customer of its obligations to report such discounts. Where the value of the discount is not known at the time of sale, Circassia will appropriately report the existence of the discount program on its invoices or statements submitted to Customer and Customer is hereby informed, of its obligations to report such discounts as appropriate, and when the value of the discount becomes known, Circassia will provide Customer with documentation of the calculation of the discount, identifying the specific goods purchased to which the discount will be applied.

XIV. INSTALLATION: Customer is responsible for installation. A company representative and/or technical assistance may be available upon request.

XV. EXCLUDED PROVIDER WARRANTY: Each Party represents, warrants and agrees that it is not currently listed by any federal agency as excluded, debarred, or otherwise ineligible for participation in any federal health care program and that it will not directly contract with any individual whom the Party knows or should have known after reasonable inquiry, (i) has been convicted of a criminal offense related to healthcare and has been excluded from participation in any federal healthcare program (unless the individual has been reinstated to participation in Medicare and all other federal healthcare programs after being excluded because of conviction), or (ii) is currently listed by a federal agency as excluded, debarred, or otherwise ineligible for participation in a federal healthcare program.

XVI. GOVERNING LAW: These Terms and all transactions between Circassia and Customer are governed by the laws of the State of North Carolina, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. These Terms and Conditions are subject to the mandatory requirements of any applicable federal or state procurement regulations.

XVII. ARBITRATION: In the event of any dispute, controversy, claim or difference that should arise between the parties out of or relating to or in connection with these Terms or the breach of any obligation in connection with any transaction between the parties, the parties shall endeavor to settle such conflicts amicably among themselves. Should they fail to do so, the matter in dispute shall be settled by arbitration in the State of North Carolina in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any award or judgment of the arbitrators shall be final and binding on the parties and may be entered in any court of competent jurisdiction. The arbitration award shall include detailed findings of fact and the reasoning used by the arbitrator to decide the matter in dispute.

XVIII. ENTIRE AGREEMENT: These Terms constitute the sole terms and conditions of the contract between the Customer and Circassia. No other terms, conditions, or understandings, whether oral or written, shall be binding upon Circassia, unless made in writing and signed by Circassia’s authorized representative.

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